Judicial
Confirmation and the ConstitutionThe issue: What role
should the United States Senate play in considering Presidential
nominees to be federal judges, especially justices of the the Supreme
Court?

Introduction

The Constitution
(Article II, Section 2) states that the President shall seek the
"advice" and obtain the "consent" of the Senate before his nominations
to the federal bench (and other "officers of the United States,"
including Cabinet officers) assume their posts. (There is an
exception for temporary appointments when the Senate is in
recess.) While it is assumed that the President will try to
nominate judges who hold a judicial philosophy that he shares, there is
much argument over whether the Senate is equally free to take
philosophy and ideology into account in its decision whether to confirm
the nominees.

The Senate rejected 27 (20%) of the 149 nominees to the Supreme Court
made between the nation's founding and 2005. The reasons for the
rejections vary, and include incompetence, inexperience, and
impropriety. Most of the rejections, however, reflect in part, or
even primarily, a difference between the President and the Senate over
whether the nominated justice represents the right ideological
choice.

The first Supreme Court nominee to be rejected by the Senate was John
Rutledge, nominated by President George Washington in 1795, just eight
years after the Constitution's drafting. Although some senators
suggested they voted against Rutledge out of concern he was losing his
sanity, the main reason for opposition (the nomination failed on a 10
to 14 vote) to Rutledge was the nominee's
recently-expressed opposition to the Jay Treaty with Great Britain, a
treaty popular in the Federalist-controlled Senate. The
ideology-based Rutledge
rejection, so soon after the Constitution's adoption, is strong
evidence that the Senate's
examination of a nominee's qualifications can be broad enough to
encompass his political views.

While senators may vote against a nominee for many reasons, it is clear
that several nominees since Rutledge have failed for political reasons
more than out of concerns of incompetence or impropriety. Four
nominees of President John Tyler, for example, failed largely because
their belief in states' rights ran counter to those of the
Whig-controlled Senate. A late-term Buchanan nominee failed in
part because he had opposed the abolition of slavery. A Grant
nominee went down to defeat because he had opposed the recent efforts
to impeach President Andrew Johnson. John Parker, a nominee of
Herbert Hoover, lost his Senate vote, 39 to41, out of concerns that he
was insensitive to labor and African-Americans.

In the modern era, the Senate rejection of a Supreme Court nominee that
is most clearly based on concerns with the nominee's politics or
judicial philosophy was the 1987 defeat of Ronald Reagan nominee Robert
Bork. In his confirmation hearings, Bork made clear that his
originalist philosophy persuaded him that the Constitution contained no
general right of privacy (and thus cases such as Griswold v
Connecticut, overturning a state ban on the sale and possession of
contraceptives, were--in Bork's opinion--wrongly decided) and that the
Equal Protection Clause offered no special protection for
discrimination based on gender. Despite the fact that Republicans
controlled the Senate, enough moderate Republicans joined with most
Democrats to defeat the Bork nomination, 48 to 52.

The Process

Nominations of Supreme
Court justices and courts of appeal judges are now driven by staff
working in the White House. (Nominations of federal district
judges, on the other hand, are more likely to start with a member of
Congress serving the district where the vacancy occurred, especially if
the congressperson belongs to the President's party.) There are
no objective criteria for whom a President might nominate; nothing in
the Constitution even requires that a nominee have any legal training.
The staff evaluates a candidate based on prior opinions (if the
nominee has judicial experience), writings and speeches, and background
to determine ideological compatibility with the President's goals, as
well as the likelihood that the candidate could be confirmed by the
Senate.

Judicial nominations are forwarded to the Senate Judiciary Committee,
which conducts its own review (using its staff and those of its
members) of the merits of the nominee. Hearings are held in which
the nominee, as well as other persons knowledgeable about the nominee's
qualifications, offer statements and answer questions posed by
Committee members. After the hearing, the Judiciary Committee
votes on whether to recommend confirmation of the nominee by the full
Senate. A nominee who fails to win a majority of Committee votes
usually sees his prospects die, unless the Committee chooses to forward
the nomination to the full Senate without recommendation. The full
Senate, once a nomination is sent to it, will debate the merits of the
nominee and schedule a final vote on confirmation. On rare
occasions, as happened when charges of sexual harrassment surfaced at
the last minute against Clarence Thomas, a nomination might be sent
back to the Judiciary Committee for further hearings. A simple majority
is required for confirmation. The average time in recent decades
between a presidential nomination of a Supreme Court justice and a
final vote by the Senate has been a bit over two months.

Senate Confirms Elena Kagan

In August, 2010, The Senate
confirmed the nomination of Elena Kagan, 50, to be the newest
Supreme Court justice,
replacing Justice John Paul Stevens. The vote was 63 to 37, with
five
Republicans joining 58 Democrats in supporting confirmation.
Opponents of Kagan during the confirmation process focused on her
opposition as Dean of the Harvard Law School to the military's
discrimination against gay soldiers, as well as
her lack of judicial experience.

Relevant
Constitutional Provisions

Article II, Section 2, Clause
2: [The President] shall nominate, and by and with the Advice and Consent of
the Senate, shall appoint...Judges of the Supreme Court, and all
other Officers of the United States....

Article III, Section 1: The
judicial Power of the United States, shall be vested in one supreme
Court, and in such inferior Courts as the Congress may from time to
time ordain and establish. The Judges, both of the supreme and
inferior Courts, shall hold their Offices during good Behavior....

Robert Bork

Clarence Thomas

Two controversial Supreme
Court nominees,
one defeated and one confirmed

In examining the Convention's record, it becomes
ostensible that the
Constitutional Framers, who had for months retained a proposal granting
the Senate sole appointment power, had not intended to eviscerate the
Senate's vital role in the selection process. Professor Charles Black
reaches a similar interpretation, asserting:

This last vote must have meant that those who
wanted appointment by
the Senate alone - and in some cases by the whole Congress - were
satisfied that a compromise had been reached, and did not think the
legislative part in the process had been reduced to a minimum. The
whole process, to me, suggests the very reverse of the idea that the
Senate is to have a confined role.

Black futher argues that the Framers contemplated
the Senate's active questioning of a nominee's policy values....

The proposition that the Senate may actively
investigate a nominee's
ideological values and vote against a nominee for political reasons is
supported by the Senate's application of the "advice and consent"
phraseology during the eighteenth and nineteenth centuries. During the
years 1787 through 1900, the Senate refused to confirm twenty-two
Supreme Court nominees, often for political reasons. As detailed
below, the Senate's early practices evince a historical tradition of
the Senate as an active and political participant in the confirmation
process....

Confirmation Trivia 1.
What Supreme Court nominee was defeated by the most lopsided Senate
vote?
A. Alexander Wolcott, a nominee of James Madison who lacked
significant legal training.2. What Supreme
Court nominee was the first to testify in confirmation hearings?
A. Harlan Fiske Stone, a confirmed nominee of Calvin Coolidge.3. What President
had the most Supreme Court nominees rejected by the Senate?
A. John Tyler (5 rejections, after Tyler angered the
Whig-contraolled Senate with his strong support for states' rights.)4. What Supreme
Court nominee was rejected by the narrowest Senate vote?
A. Jeremish Black, a nominee of James Buchanan made just a month before
Abraham Lincoln would succeed him as president, who was rejected 26 to
25 , largely because he was a northerner opposed to abolition.5. Who was the first
nominee to face a Senate filibuster?
A. Abe Fortas, Lyndon Johnson's nominee to be Chief Justice, was
filibustered by a Republican-controlled Senate in 1968, as an election
neared that ultimately would be won by Richard Nixon, who would then
fill the vacancy with Warren Burger.

Also called "the constitutional option," the nuclear
option is a decision, presumably to be made by the Majority Leader of
the Senate (Senator Frist), to call for a ruling by the Senate's
presiding officer, the Vice President, that an ongoing filibuster
against a judicial nominee is unconstitutional. The motion to
call for a ruling by the presiding officer cannot itself, under the
Senate's rules, be filibustered, and the presiding officer's decision
could be upheld by a simple majority vote of the Senate. Such a
ruling would not change Senate Rule XXII, which permits the use of
filibusters, but would effectively end the filibuster against the
nominee.

There is little in the Constitution to suggest that filibusters are
unconstitutional when used against judicial nominees, but
constitutional in all other situations. More plausibly,
filibusters are either constitutional (as has previously been assumed,
since they are not expressly barred by the Constitution, which
delegates authority to the Senate to establish its own rules) or
unconsitutional (filibusters are a creature unknown to the Constitution
and probably not contemplated by the framers) in all
circumstances. This does not mean, however, that as a matter of
raw power the nuclear option cannot be used. Any attempt to argue
to a court that the nuclear option is itself unconstitutional is likely
to be determined to be "a political question" unsuitable for judicial
determination.

The nuclear option gets its name because it is seen as a drastic step
which, in the minds of many Senate watchers, threatens to "blow up"
whatever civility remains in that body.

Questions

1. Is it
unconstiutional for a President not to seek any advice from Senators in
advance of making nominations? If not, what does the word
"advice" in Article II, Section 2 mean?
2. Does the Constitution, in your opinion, presume that senators
are free to vote against competent nominees for purely political
reasons?
3. Regardless of whether they have the power to do so, should
senators be free to weigh ideological concerns in their decision
whether to support a nominee, to the same extent as a president is free
to weigh those concerns in his or decision to make the nomination?